Abdul Hamid (hereinafter called the plaintiff) filed a suit (which has given rise to this Regular Second Appeal) for a permanent injunction to restrain defendants (who were two in number, namely, (i) Fazal Hussain and (ii) Muhammad Bashir) from interfering with the suit land as they had no concern with it and that the same belonged to the plaintiff. The suit was resisted by the said defendants. Defendant No, 1 claimed title to the property and defendant No, 2 referred his user to the possession of defendant No,
1. On the pleadings of the parties, the learned trial Court framed the following issues :- "(1) Whether the plaintiff is owner and occupier of the suit property ?
(1-A) Whether the suit is properly valued for the purposes of court-fee and jurisdiction ?
(1-B) Whether the plaintiff is estopped from filing this suit 7"
The learned trial Court decided issue No, 1 against the plaintiff and held that he was not the owner of the suit property. In this behalf the plaintiff wanted to adduce certain documents in evidence, but the learned trial Court refused to take them on the ground that they had earlier been taken back by the plaintiff even though that was done with leave of the Court and for some other purpose. On Issue No, 1-A, the plaintiff was required to make good the deficiency of court-fee which he complied with and the issue was accordingly disposed of. On Issue No, 1-B, it was held that the plaintiff was not estopped from filing this suit. In view of the finding on Issue No, 1, the suit of the plaintiff was dismissed by the learned civil Judge by means of his judgment and decree, dated the 20th of April 1964.
2. The plaintiff filed an appeal which was accepted by Captain Muhammad Daud Khan, learned Addl. District Judge, Lahore on the 5th of April 1965. The only issue which formed subject of debate before him was issue No, 1 and finding on issue No, 1-B, regarding estoppel, does not seem to have been taken exception to, though it was open to the defendants to do so under Order XLI, rule 22 of the Code of Civil Procedure. Thus dealing solely with Issue No, 1, the learned Addl. District Judge held that the same had not been properly tried and the relevant documentary evidence of the plaintiff had wrongly been disallowed. The learned Addl. District Judge held that if the trial Court had itself granted the plaintiff permission temporarily to take back the relevant necessary documents, there was no justification to reject the same when they were reproduced before it later on. In this view of the matter, he allowed the said documents to be taken into evidence and remanded the case to the learned Civil Judge for trial afresh of the said issue No, 1 alone.
3. After remand, the learned trial Court, after allowing the parties due opportunity to lead fresh evidence, decided Issue No, 1 in favour of the plaintiff and holding him to be the owner of the suit land, decreed the plaintiff's suit on the 23rd of June 1966. The defendants went up in appeal which came up for hearing before Ch. Bashir Ahmad, learned Addl. District Judge, Lahore, who maintained the finding of the learned trial Court on Issue No, 1 and holding the plaintiff to be the owner of the suit land, dismissed the appeal by means of his judgment and decree, dated 6-1- 1968. The defendants have come up in second appeal to this Court. Learned counsel for the defendants have raised a number of contentions which I will presently deal with.
To start with, learned counsel for the defendants wanted to challenge the validity of the order of remand dated the 5th of April 1965, so as to argue the point of estoppel which was contained in Issue No, 1-B. I am afraid, the defendants cannot be allowed to re-agitate this plea at this late stage of the case. This issue was decided, as will be evident from the history of the case hereinbefore given, by the learned trial Court on 20-4-1964 in favour of the plaintiff and finding thereon was not interfered with in appeal by the learned Addl. District Judge. The learned Addl.
District Judge had remanded the case for fresh trial only on issue No,
1. The said order of remand was appealable to this Court under Order XLIII, rule 1(u) read with Order XLI, rules 23 and 23-A, as added by Punjab Amendment, dated 3/4-8-1938. It is well settled that if an order of remand is appealable but no appeal is filed against the same, then the said order cannot be challenged in the course of appeals which may ensue from the fresh findings of the trial Court under the order of remand--See Abdul Hamid and 2 others v. Saadullah Khan and 2 others and Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another. Subsection (2) of section 105 of the Code of Civil Procedure is also to the same effect inasmuch as it states that :- "(2) Notwithstanding anything contained in subsection (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
5. The next point urged was that the plaintiff in this case had not given a correct description of the suit land and nor did he file a copy of the site plan along with the plaint. It was argued that the plaint violated the provision of Order VII, rule 3, C. P. C. and, as such, must result in the dismissal of the suit. The contention has no force. Rule 3 of Order VIE, states that :-- "Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers, in a record of Settlement or Survey, the plaint shall specify such boundaries or numbers."
The emphasis in this rule is on the identification of the property and it has never been held that a suit should be dismissed or that a plaint should be rejected on account of any alleged "insufficient description"-- See Rani Hemanta Kumari Debi v. The Secretary of State for India-in-Council, Kazem Sheik and others v. Danesh Sheik, Jaladhar Mandal v. Kinoo Mandal, Syed Reza All v. Poornanund Chuckerbutty, Durga Churn Law and others v. Kala Chand Biswas and others, Rameshwar Singh v.
Sadanand Jha and others, Raj Narain Das and others v. Shama Nando Das Chowdhury and others and Nasir Mea v. Arman Ali Mea and others. Again in this case even though the plaintiff1 2 3 4 5 6 7 8 9 10 did not file the site plan the same was filed by the contesting defendants and, as such, the objection cannot be given any serious consideration. So far as the boundaries etc., are concerned, even though they do not figure in the plaint nevertheless it cannot be said that the defendants were under any mistake as to the identification of the suit plot In paragraph 2 of the written- statement, they pleaded as follows :-- {{URDU TEXT}} If the above pleadings are read in conjunction with the application, dated 9-7-1960, which the defendants themselves filed under Order XXXIX, rule 4, C. P. C., for vacation of a temporary injunction earlier issued by the learned Civil Judge, it becomes quite clear that the identity of the plot was well-comprehended by them. It is advisable to reproduce the said application in extenso.
It reads as follows :-- {{URDU TEXT}} The plaintiff filed the following reply to the above application on the 21st of July 1960: {{URDU TEXT}} The above material will show that the identification of the suit plot was well-understood by the parties. They made elaborate claims about the same, relied upon documentary material in that behalf and led due evidence of their title. The defendants in their written-statement never raised any objection of the kind which is being raised before me for the first time in the course of this second appeal. They never argued this plea even in the Courts of the learned Addl. District Judges before whom the case came up twice. The objection put forward is thus merely an afterthought and is hereby repelled.
6. The next point argued by the learned counsel for the defendants-appellants was that the Courts below have not referred to the entire evidence on the record and, therefore, the verdict in the case should be in their favour. Learned counsel for the parties thus took me through the entire material on the record both documentary and oral. To produce in a systematic way, the starting point on which there was an agreement between the learned counsel for the parties before me was that the site in dispute falls in that compact area which was purchased by Hussain Bakhsh son of Didar Bakhsh or Didar from one Sharaf Din by means of a registered deed of sale (Exh. D. 1, dated 9-11- 1871), Hussain Bakhsh had a son Feroze Din whose son is Fazal Hossain defendant No,
1. The said defendant, therefore, bases his title on the document hereinbefore mentioned. While appearing as D. W. on 20-4-1961, he deposed that his grandfather and grandfather of the plaintiff were brothers, but this is not borne out from the record inasmuch as Exh. D. 1 shows that father of Hussain Bakhsh was Deedar Bakhsh, whereas father of Sajjada or Shehzada, as given in deed marked "A" was Shamira. This is why that when questioned further defendant No, 1 broke out and stated that he could not say whether they were real brothers or not.
7.At this stage I may state the pedigree-table of the plaintiff which is to the following effect and which was agreed to before me by the learned counsel for the parties :- Shamira Sajjada alias (Shehzada)
Miran Bakhsh alias JamitaHaji Booti alias BootaMuhammad Bakhsh alias Manda Abdul Hamid (Plainti).Ghulam Ahmad Waheed-ud-Din
8. The case of the plaintiff is that Hussain Bakhsh predecessor of defendant No, 1 sold the land/or a parcel of the land to Sajjada alias Shehzada on 4-8-1878 as per deed of sale marked "A". Sajjada alias Shehzada had three sons (1) Miran Bakhsh alias Jamita ; (2) Haji Booti and (3) Muhammad Bakhsh alias Manda. Muhammad Bakhsh alias Manda and Haji Booti relinquished their rights in two plots by means of a relinquishment deed (Exh. P. W. 3/1), dated 15-1-1935, in favour of Miran Bakhsh alias Jamita, father of plaintiff Abdul Hamid. (The deed is accompanied by a site plan marked "B").
Miran Bakhsh in this way became owner of the entire land which had been purchased by Sajjada alias Shehzada from Hussain Bakhsh the predecessor of defendant No,
1. The plaintiff led three more documents into evidence to prove his title and also the user of the property in dispute. One document (Exh. P. 1) is a deed of mortgage dated 13-12-1921, which shows that Haji Booti mortgaged the land in favour of two persons, namely, Muhammad Bakhsh and Muhammad Nazir who appeared as P. W. 1 (though he is described as Nazir Ahmad). The second document is a rent note, dated 10-8-1933 by one Aziz Din in favour of the plaintiff (marked "C"). The third document is a rent note dated 15-7-1941, marked "D" and was executed by one Jan Muhammad in favour of the plaintiff. The position in a graphic form as evident from these documents will be as follows :-- 1 2 3 4 5 Sale deed 9- 11-1871 by Sharaf Din favour of Hussain Bux father of defdt.
No. 1 (Exh. D.
1).Sale deed dt. 4-8- 1878 by Hussain Bakhsh in favour of Sajjada alias Shahzada marked as "A"Mortgage dt. 13-12- 1921 by Malik Booti in favour of Mohd.
Bashir and Mohd.
Nazir sons of Abdul Hamid (Exh. P.1).Relinquishment deed dt. 15-1- 1935 by Ghulam Ahmad s/o Haji Booti & Malik Manda s/o Malik Shehzada in favour of Miran Bux father of Abdul Hamid plaintiff (Exh.
P.W. 3/1) with regard to two plots.Rent deed dt.
10-8-33 by Aziz- ud-Din in favour of Malik Hamid plaintiff marked as "C" {{URDU TEXT}} {{URDU TEXT}} (Area in feet 202 feet){{URDU TEXT}} (Area in feet 337 feet)1 Plot (shown {{URDU TEXT}} Area in feet
241. It contains site. Its plan(marked "B" which is Triangular in shape and tallies with the site shown in the site plan marked "E"
Second plot (Shown) {{URDU EXT}}{{URDU TEXT}} ST The narration of events as given in paragraph No, 8, above, cannot be doubted, supported as it is by documentary evidence. All that the learned counsel for the defendants-appellants stated in that respect was, that the plot of the land in dispute is not that or out of that which was sold by his ancestor Hussain Bakhsh to Sajjada alias Shehzada vide sale deed marked "A", dated 4-8-1878. It may be mentioned that the defendants alongwith their list of documents on 21-7-1960 (before remand) placed on record (a) original sale-deed dated 9-11-1871 ; (Exh. D. 1) ; (b) site plan marked "E" and (c) a copy of first information report No, 27 dated 8-6-1960 lodged by the plaintiff. The site plan was duly referred to by the learned Addl. District Judge in his order of remand dated 5-4-1965.
In the site plan, the defendants indicated the portion in red as "site" in dispute. Its particular features are :-- (i)that it is triangular in sb ape ; (ii)on its east is street or street-land and on its west is House No, A/300 of Fazal Hussain defendant No,
1. On its north is open land and street and on its south is street-land. These boundaries tally with those of plot Alif shown in relinquishment deed (Exh. P. W. 3/1), dated 15-1- 1935. Alongwith the relinquishment deed is a plan marked "B". The shape of the site as in "E" is in conformity with the one given in "B".
(iii)the boundaries of the site as given in "B" tally also with those as given in the sale-deed dated 4-8-1878 marked "A".
(iv)these boundaries also tally with those as given in mortgage-deed (Exh. P. 1), dated 13-12-1921 and rent-note dated 10-8-1933 marked "C". In these two documents on west is shown a house of Feroze Din who is father of defendant No, 1 and son of Hussain Bakhsh as indicated in para. 6 above.
If these documents are read along with the oral statements of plaintiff's witnesses, there is left no doubt that the site is the same which was involved in sale-deed (Exh. D. 1), dated 9-11-1871 and sale-deed marked "A" dated 4-8-1878. P. W. 1 is Nazir Ahmad son of Abdul Majid. He deposed that he had seen the site in question and it is the same whose owner was Malik Booti who had once mortgaged it with the witness vide mortgage deed (Exh. P. 1), P. W. 3 is Ghulam Ahmad son of Malik Boota who deposed that he alongwith his uncle Muhammad Bakhsh surrendered the land in question in favour of the plaintiff vide relinquishment deed (Exh. P. W. 3/1). P. W. 4 is Jan Muhammad. He deposed that he had taken the land in dispute on rent from the wife of the plaintiff and had executed a rent-note marked "D" in her favour ; because at that time the plaintiff was out of station. P. W. 5 Muhammad Hussain deposed about the ownership of the plaintiff. P. W. 6 was Abdul Hamid plaintiff who deposed about the facts hereinbefore mentioned. Earlier he appeared as P. W. 2 also. All this evidence fully establishes the title of the plaintiff.
9. As against the above, defendant No, 1 himself appeared as his own witness as D. W. 1 and defendant No, 2 as D. W. 2 on 20-4-1961. They made a general statement about the ownership of defendant No,
1. Later on, they produced Ghulam Muhammad (who also was marked as D. W. 1). He was a Taxing Clerk living in a neighbouring galli and used to distribute bills. He deposed that he had been seeing defendant No, 1 as using the site in question. This is a vague statement and cannot be considered conclusive regarding defendant No, l's ownership. D. W. 2 is Muhammad Rafiq. D. W. 3 is Muhammad Hayat. D. W. 4 is Muhammad Hussain. They all deposed about the general use of the site by the defendants. Their statements are thus of a general character and cannot be of much assistance. D. W. 5 is Inayat Masih Muharrir Head Constable who proved a copy of F. I. R. No, 27 (Exh. D. W. 5/1), dated 8-6-1960, lodged by the plaintiff. The defendants wanted to show that in this report the plaintiff had written that: {{URDU TEXT}} From this it was sought to be argued that the plaintiff was not the owner of the site inasmuch as he simply wrote in the F. I. R. that he had been considering himself to be the owner (and not that he, in fact was the owner). The argument is too subtle to be given any serious consideration. D. W. 6 is defendant No, 1 Fazal Hussain again. He made no substantial rebuttal of the plaintiff's evidence and deposed generally about his user. He, however, stated that the land belonging to the plaintiff was that where the plaintiff had installed an oven and that the said place was towards the north of the site in question. It was for the first time in this statement that the ownership of the plaintiff was admitted though its location was sought to be shifted to another spot towards the north. No effort was, however, made to locate the said place, nor any other evidence was led to identify it with the documentary evidence led by the plaintiff. It is further to be pointed out that no other witness made any such statement and nor was the alleged spot in north fixed up with any other evidence. It appears to me that both, the site in question and the alleged northern-sideplot, (if it is taken to be the same plot which is marked "X" by me in Plan "E") safely fit in with the two plots mentioned in the relinquishment deed (Exh. P. W. 3/1 dated 15-1-1935), and therefore, the suggestion made in the deposition of D. W. 6 cannot give him any help. The case of the plaintiff is well-proved on the record whereas the defendants have relied upon generalities and vague statements. They have not been able to rebut the plaintiff's documentary evidence and after having gone through the entire material on the record, I am of the opinion that the view taken by the two Courts below cannot be taken exception to. Learned counsel argued that since the relinquishment deed is dated 15-1-1935, it was not possible for the plaintiff to give on rent the site in question vide rent-note marked "C", dated 10-8-1933, and, therefore, the said rent-note should not be taken into consideration. The point has no value, firstly, because the rent-note marked "C" is pretty old, executed at a time when there was no dispute between the parties and, secondly, because the plaintiff being an heir of Sajjada alias Shehzada had already one-third share in the land and could give the same on rent and if the other two heirs relinquished their share in 1935 in his favour, that does not detract from his case in any manner and rather it goes to establish even his prior co-ownership or prior title.
Thirdly, in the relinquishment deed itself, there is a clear recital that the said plots had already been given to the plaintiff's father which shows that the relinquishment deed was being written just for the sake of formality and the plots mentioned therein already vested in and belonged to the plaintiff. Another argument raised was that the areas in various documents hereinbefore mentioned were not quite exactly the same. For example, in Exh. D. 1 dated 9-11-1871, the area was given as 306 feet (One marla and 9 gaz {{URDU TEXT}}. In sale-deed marked as "A", dated 4-8-1878, the area is given as 2021 feet (22-1/2 yards). In relinquishment deed (Exh. P. W. 3/1) dated 15-1-1935, the area of plot Alif is given as 241 feet (One Marla and 16 feet) and area of Plot Bey {{URDU TEXT}} is given as 129 or 149 feet. In mortgage deed, dated 13-12-1921, (Exh. P. 1), the area is given as 337-1/2 feet (One-and-a-half marla). It was further argued that the plot which is the subject-matter of controversy in this case has been described in the plaint as to consist of 149 feet. The point is not of any substance ; because the area which is mentioned in the plaint is less than various areas hereinbefore mentioned and is included in them. Once it is accepted that the area in dispute is that which is shown by the defendants themselves in their site plan marked "E", then the same quite fits in with the various documents hereinbefore mentioned. Moreover, it is well settled that if in the plaint or in any deed there is an inconsistency between the description by the boundaries and by the areas, then that which is more certain and stable and least likely to have been mistaken and which sufficiently identifies the land should prevail. The true construction is that which will, as far as possible, bring the several factors into harmony with one another and express most nearly the intention of the parties. Applying these principles to the facts and the circumstances of the present case, and judging the matter from an overall point of view, there is no escape from holding that the plaintiff has been able to prove that the spot in dispute is out of the same land which is shown in the various documents relied upon by him. The defendants have not been able to rebut the plaintiff's case by any cogent evidence and, as such, the finding on issue No, 1 is hereby maintained.
10. The upshot of the above discussion is that this appeal has no merits and is dismissed with costs throughout. PLD 1970 SC 63 AIR 1960 SC 941 (1906) 3 C L J 561 (P C) (1897) 1 C W N 574 (1897) 1 C W N 189 (1870) 14 S W R 474 (1903) 7 C W N 615 AIR 1920 Pat. 82 ILR 26 Cal. 845 (1913) 18 IC 745